In re Broiler Chicken Antitrust Litigation

IN RE BROILER CHICKEN ANTITRUST LITIGATION This Document Relates To All Actions

ORDER

Jeffrey T. Gilbert Judge

Tyson
Defendants' Motion for Protective Order to Preclude
Non-Parties' Production of Documents as to Non-Custodians
[725] is denied without prejudice. See Statement for further
details.

STATEMENT

This
matter is before the Court on Tyson Defendants' Motion
for Protective Order to Preclude Non-Parties' Production
of Documents as to Non-Custodians [725], Tyson Defendants
seek a protective order to prevent non-party AT&T from
producing documents, specifically telephone records for
telephone numbers purportedly used by three former Tyson
executives, pursuant to a subpoena to be served upon AT&T
by Plaintiffs. Tyson Defendants argue that the subpoenaed
telephone records are irrelevant and that allowing Plaintiffs
to serve their subpoena would impose upon Tyson Defendants an
undue burden because they would have to review the subpoenaed
records, potentially review other records relating to the
three former Tyson executives, and defend against likely
follow-up discovery.

The
Federal Rules of Civil Procedure allow for liberal discovery.
Swierkiewicz v. Sorema N. A.,534 U.S. 506, 512
(2002). Under Rule 26, "[p]arties may obtain regarding
any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case...." Fed.R.Civ.P. 26(b)(1). Nonetheless, under Rule
26(c)(1), a court has the broad authority to enter a
protective order to limit discovery "for good cause
shown ... to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or
expense...." Fed, R. Civ. P. 26(c)(1). The burden to
show good cause is on the party seeking the order.
Jepson, Inc. v. Makita Elec. Works, Ltd, 30 F.3d
854, 858 (7th Cir, 1994). Conclusory statements are not
sufficient. See Zenith Electronics Corp. v. Exzec,
Inc., 1998 WL 9181, at *8 (N.D. 111. Jan. 5, 1998); 8 C.
Wright & A. Miller, Federal Practice and Procedure §
2035 (1970). So, the Court must decide whether Tyson
Defendants have shown good cause for the protective order
they want the Court to enter.

The
Court has reviewed the parties' submissions and concludes
that Tyson Defendants have not shown good cause for entry of
a protective order under Federal Rule of Civil Procedure
26(c). Plaintiffs appear to seek what may be relevant
information that is proportionate in scope and timing. On a
sliding scale, the Court acknowledges that Plaintiffs seem to
have made more of a showing of relevance as to telephone
calls made by the late Don Tyson than they have done with
respect to John Tyson or Archie Schaffer. But parsing
relevance with respect to a relatively focused third-party
subpoena this early in the case in the face of the threshold
showing Plaintiffs have made and in the context of an
objection by a party required to do nothing directly in
response to the subpoena can be a perilous task.

Further,
and importantly, Tyson Defendants have not shown that
Plaintiffs' subpoena to AT&T would impose any
.specific or substantial burden on them at this time. Rather,
Tyson Defendants' burden argument is more diffuse and
ephemeral. The burden on Tyson Defendants as a result of
AT&T producing documents in response to Plaintiffs'
subpoena is, in the general scheme of things, relatively
minor, even if Tyson Defendants have to review the documents
produced and do some internal vetting and investigation
secondary to whatever those documents might show. It does
not, in the Court's view, constitute good cause for the
issuance of a protective order at this juncture. Also, to the
extent certain of the phone numbers flagged by Plaintiffs are
not even associated with Tyson or any of its three former
executives as Tyson Defendants seem to say in their Reply
memorandum, the burden argument pales to de minimis for that
aspect of Plaintiffs' subpoena.

In
addition, Tyson Defendants' argument that production of
the AT&T phone records "will almost certainly spawn
yet more discovery" in the future ([ECF No. 773, at 6])
does not translate into good cause to block the third-party
discovery Plaintiffs actually are seeking now. If Plaintiffs
seek additional discovery from Tyson Defendants in the future
because of the phone records Plaintiffs may receive from
AT&T, and that additional discovery runs afoul of the
requirements of Rule 26(b)(1), then the Court can address
that particular discovery at that time and evaluate it in
context and on the merits rather than on the basis of
speculation and supposition about what that future discovery
might entail.

Finally,
the Court concludes that Plaintiffs did not waive their
ability, as Tyson Defendants argue, to seek this information.
The Court understands Tyson Defendants believe they were
whipsawed by Plaintiffs when they agreed to produce certain
information last year or agreed to particular custodians only
to have Plaintiffs seemingly go back on what Tyson Defendants
believed to be a negotiated compromise to a discovery dispute
that had been put to bed. The Court does not read the
relevant emails that way. See [ECF No. 754-2]
("[Plaintiffs] obviously reserve all rights as discovery
proceeds, and in turn, we understand Tyson reserves all
rights."). In any event, Plaintiffs present a credible
argument that their thinking may have evolved after they
obtained additional information. In short, the Court does not
see any major unfairness here.

For all
of these reasons, Tyson Defendants' Motion for Protective
Order to Preclude Non-Parties' Production of Documents as
to Non-Custodians [725] is denied without prejudice to Tyson
Defendants' ability to oppose any future discovery
directed to them by Plaintiffs that may grow ...

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